The law will be on Trump’s side if he declares an emergency

In that respect, this case would be governed not by Youngstown, but by Dames & Moore v. Regan. In Dames & Moore, the Supreme Court addressed the actions taken by the Carter and Reagan administrations to settle the Iran hostage crisis. Under the deal reached with the mullahs in Tehran, the United States had to suspend claims against Iran in U.S. courts, nullify any attachment of Iranian assets pursuant to court order, and transfer all Iranian funds in U.S. banks to a U.S.–Iran claims tribunal in the Hague. President Carter triggered emergency powers under the International Emergency Economic Powers Act of 1977, which allowed him to suspend the claims and to transfer bank funds — but, importantly, did not allow him to lift court orders freezing assets. The Court, however, upheld Carter’s order in toto anyway. His action was “supported by the strongest of presumptions and the widest latitude of judicial interpretation,” Justice William Rehnquist wrote, “and the burden of persuasion would rest heavily upon any who might attack it.” Because the president was acting pursuant to congressional delegation, the Court observed, “a contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, and that we are not prepared to say.”

I believe that the Roberts Court — but perhaps not lower courts, especially those that view themselves as part of the resistance to the Trump administration — would grant the same generous deference to President Trump. Here, Congress has passed at least two laws that give the president the power to transfer funds to a construction project, such as a wall, after a declaration of emergency.